Академический Документы
Профессиональный Документы
Культура Документы
FEB 8 2005
PATRICK FISHER
Clerk
RAYMOND TAYLOR,
Plaintiff-Appellant,
v.
JOSEPH CORRAL, Unit Manager,
Torrance County Detention Facility;
ALFRED JARAMILLO, Disciplinary
Hearing Officer, Torrance County
Detention Facility,
No. 04-2016
(D.C. No. CIV-01-368 BB/RHS)
(D. N.M.)
Defendants-Appellees.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Raymond Taylor, proceeding pro se, appeals the district courts dismissal
of his civil rights action. Because he failed to comply with 28 U.S.C. 636(b)(1)
and did not file objections to the magistrate judges proposed findings and
recommended disposition, he waived his right to appeal the district courts order.
Accordingly, we dismiss this appeal.
Previously, the federal district court dismissed for failure to state a claim
Mr. Taylors civil rights action alleging various constitutional violations,
including the denial of due process when he was kept in segregation beyond his
scheduled release date. On appeal, this court affirmed in part, but reversed the
dismissal of the due process claim and remanded it for further proceedings.
Defendants argue this court lacks jurisdiction to consider this appeal. The
magistrate judge filed his proposed findings and recommended disposition on
December 31, 2003, and the district court entered its final order on February 2,
2004. Also on February 2, Mr. Taylor filed a notice of appeal, indicating he was
appealing from the magistrate judges decision. This notice of appeal was
premature and failed to identify the district courts final order.
See Colo. Bldg. &
Constr. Trades Council v. B.B. Andersen Constr. Co.
, 879 F.2d 809, 809, 811
(10th Cir. 1989) (holding magistrate judge cannot enter final, appealable order
without parties express consent and designation by district court).
1
Taylor v. Stewart , 49 Fed. Appx. 262 (10th Cir. 2002). After further proceedings
on remand, the magistrate judge recommended that defendants motion for
summary judgment be granted and the case be dismissed with prejudice.
In his proposed findings and recommendation, the magistrate judge
specifically stated that pursuant to 636(b)(1), the parties had ten days after
service of the proposed findings and recommendations to file written objections
with the district court, and failure to do so would bar their ability to seek
appellate review of the proposed findings and recommendations. Neither party
filed objections. Noting the failure to object, the district court adopted the
magistrate judges proposed findings and recommended disposition and dismissed
the case with prejudice. We issued a show cause order directing the parties to
address whether Mr. Taylors failure to file written objections to the magistrate
judges proposed findings and recommended disposition waived appellate review.
We have a firm waiver rule when a party fails to object to the findings and
recommendation of the magistrate [judge].
393 F.3d 1111, 1114 (10th Cir. 2004) (quotation omitted). If a party fails to
timely object, he waives appellate review of any factual or legal issues.
Id. We
Terrence L. OBrien
Circuit Judge
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